Citation NR: 9724661
Decision Date: 07/17/97 Archive Date: 07/25/97
DOCKET NO. 95-34 740 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating for a psychophysiological
gastrointestinal disorder, currently evaluated as 50 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, appellant’s wife
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Associate Counsel
INTRODUCTION
The veteran had active duty service from February 1969 to
February 1971.
This appeal arises from a May 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied the veteran’s claim seeking
entitlement to an increased rating for his service connected
psychophysiological gastrointestinal disorder, currently
rated as 50 percent disabling.
REMAND
In February 1973, the veteran was granted service connection
for a psychophysiological gastrointestinal disorder and such
disorder is currently evaluated as 50 percent disabling. In
May 1995, the RO denied his claim of entitlement to an
increased rating. After additional evidence was obtained,
the RO affirmed its denial in February 1996. A review of the
claims folder shows that the veteran was afforded VA
psychiatric examinations in January and November 1995. The
most recent records of treatment for his psychophysiological
gastrointestinal disorder are dated in September 1995.
In Massey v. Brown, 7 Vet.App. 204 (1994), the United States
Court of Veterans Appeals (Court) held that VA, in assigning
ratings for psychiatric disorders, must discuss the specific
criteria set forth in the VA Schedule for Rating
Disabilities. During the current appeal, however, sections
of the Rating Schedule pertaining to psychiatric disorders
were amended, effective November 7, 1996, and these
amendments included changes to the rating criteria used in
evaluating psychophysiological disorders. 61 Fed. Reg.
52695-52702 (1996) (codified at 38 C.F.R. §§ 4.125-4.130).
The Board notes that VA adopted the nomenclature of the
American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders (3rd ed. 1980) (DSM-III);
subsequently, such manual was revised in 1987 (DSM-III-R) and
again in 1994 (DSM-IV). In November 1996, 38 C.F.R. § 4.125
and § 4.126 were amended and § 4.130 was replaced with a new
section that specifically adopts DSM-IV as the basis for the
nomenclature of the rating schedule for mental disorders,
although the Board notes that relevant portions of the VA
Adjudication Procedures Manual still refer to DSM-III-R.
The veteran has yet to be informed of these new criteria, and
the RO has yet to determine the appellant’s entitlement to an
increased evaluation under such new criteria. As the Board
cannot determine the evaluation warranted under the new
criteria without prejudicing the veteran’s right to due
process under law, Bernard v. Brown, 4 Vet.App. 384, 394
(1993), and as the claim for an increased rating under the
new criteria is inextricably intertwined with the benefit
sought on appeal, the Board concludes that the RO must
consider the veteran’s entitlement to an increased rating
under the new criteria in the first instance. See also
Karnas v. Derwinski, 1 Vet.App. 308 (1991).
Furthermore, at his personal hearing in February 1996, the
veteran stated that he has been receiving benefits from the
Social Security Administration since the mid-1980s. In
Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992), the Court
held that the VA’s “duty to assist” included the duty to
obtain relevant medical records pertaining to an award of
Social Security benefits. Because these records are absent
from the veteran's claims file, further development is
advisable.
Therefore, this case is REMANDED for the following actions:
1. After obtaining the necessary
authorization, the RO should contact the
Social Security Administration and
ascertain whether the veteran is
currently receiving disability benefits
from that agency. Copies of any
decisions awarding or denying such
benefits should be obtained and
associated with the claims folder.
Supporting medical documentation utilized
in rendering any decision relating to
such benefits should also be obtained for
inclusion in the veteran’s claims folder.
2. The RO should contact the veteran and
request that he identify the names,
locations, and approximate dates of
treatment for all VA and private health
care professionals who have provided
treatment for his psychophysiological
gastrointestinal disorder since September
1995. After obtaining any necessary
authorization, the RO should then request
and associate with the claims file any
records of treatment of the veteran.
3. After the development in the
preceding paragraphs is completed, the RO
should then evaluate and assign a rating
for the veteran's psychophysiological
gastrointestinal disorder, based on all
the evidence of record and all governing
legal authority, to include the revised
diagnostic criteria, effective November
7, 1996, for the rating of
neuropsychiatric disorders.
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case, wherein the diagnostic criteria
effective November 7, 1996, for the rating of
neuropsychiatric disorders are fully set forth, and afford a
reasonable period of time for a response. Thereafter, the
case should be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO.
BRIAN J. MILMOE
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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